Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Charities and Trustee Investment (Scotland) Act 2005

Type Act of the Scottish Parliament

Publication 2005-07-14

Last updated 2026-03-05

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(a) a charity has failed to send a copy of its statement of account to OSCR in pursuance of section 44(1)(d), and

(b) the time by which the statement was due to be sent to OSCR by virtue of provision made under section 44(4)(f) has passed.

(2) OSCR may, after notifying the charity of its intention to do so, appoint a suitably qualified person (an “appointed person”) to prepare such a statement of account.

(3) An appointed person is entitled—

(a) on giving reasonable notice, to enter premises occupied by the charity at all reasonable times,

(b) to have access to, and take possession of, any document appearing to the appointed person to relate to the financial affairs of the charity, and

(c) to require any charity trustee, or agent or employee, of the charity to give the person such assistance, information or explanation as the appointed person may reasonably require.

(4) The charity trustees of the charity are personally liable jointly and severally for—

(a) any costs incurred by OSCR in relation to the appointment of the appointed person, and

(b) the expenses of the appointed person in performing that person's functions under this section.

(5) The appointed person must—

(a) send to OSCR the statement of account prepared in pursuance of subsection (2),

(b) submit to OSCR a report on the affairs and accounting records of the charity, and

(c) send a copy of the statement of account and report to each person appearing to the appointed person to be a charity trustee of the charity.

(6) A person who, without reasonable excuse, refuses or fails to comply with a requirement of an appointed person under subsection (3) is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Duty to report matters to OSCR

Duty of auditors etc. to report matters to OSCR

46

(1) This section applies to—

(a) any person appointed to carry out an independent examination or audit of a charity's statement of account (including, in the case of a charity which is a company, any person appointed as auditor under Chapter 2 of Part 16 of the Companies Act 2006 ), and

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

who is acting in the appointed capacity.

(2) A person to whom this section applies who becomes aware of any matter—

(a) which relates to the activities or affairs of—

(i) the charity, or

(ii) any institution or body corporate connected to that charity, and

(b) which the person has reasonable cause to believe is likely to be of material significance for the purposes of the exercise by OSCR of its functions under section 28, 30 or 31,

must immediately report in writing on the matter to OSCR.

(3) A person to whom this section applies who becomes aware of any matter—

(a) which does not appear to the person to be one which the person is required to report under subsection (2), but

(b) which the person has reasonable cause to believe is likely to be relevant for the purposes of the exercise by OSCR of any of its functions,

may report on the matter to OSCR.

(4) A duty or power which arises under subsection (2) or (3) is not affected if the person in relation to whom it arises subsequently stops acting in the capacity mentioned in subsection (1).

(5) An institution or body corporate is connected to a charity if—

(a) it is an institution which is controlled (whether directly or through one or more nominees) by, or, as the case may be

(b) it is a body corporate in which a substantial interest is held by,

the charity or any one or more of the charity trustees acting in that capacity.

(6) Section 105 sets out when a person is to be treated as controlling an institution or as having a substantial interest in a body corporate.

Dormant charity accounts

Dormant accounts of charities

47

(1) Subsection (3) applies where—

(a) a relevant financial institution (whether or not in response to a request from OSCR) informs OSCR that every account held by the institution in the name of or on behalf of a body appearing to the institution to be a relevant body is dormant,

(b) OSCR is satisfied that the body is a relevant body, and

(c) OSCR is unable, after making reasonable inquiries, to locate any person concerned in the management or control of the body.

(2) A relevant body is one which is, has at any time been or, in the case of a body which has ceased to exist, was prior to such cessation—

(a) a charity, or

(b) entitled by virtue of section 1(7) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40) to describe itself as a “Scottish charity”.

(3) OSCR must transfer the amount standing to the credit of the relevant body in the dormant accounts (less any amount which it is authorised by regulations under section 48(1) to retain) to—

(a) such charity as OSCR may determine, having regard to the purposes of the relevant body and the purposes of the charity, or

(b) where OSCR is unable to ascertain the purposes of the relevant body, to such charity as OSCR considers appropriate.

(4) For the purposes of subsection (3), OSCR may effect any transaction in relation to the dormant accounts (including a transaction closing any such account).

(5) Where under subsection (3) OSCR transfers an amount to 2 or more charities, it may divide the amount among those charities as it thinks fit.

(6) A charity to which an amount is transferred under this section may apply the amount for its purposes as it thinks fit.

(7) The receipt by—

(a) OSCR of an amount withdrawn or transferred from an account by virtue of this section is a complete discharge of the relevant financial institution, or

(b) a charity of an amount received from OSCR by virtue of this section is a complete discharge of OSCR,

in respect of the amount.

(8) OSCR's power under subsection (3) ceases—

(a) if the relevant financial institution by which the accounts are held informs OSCR that the accounts (or any of them) are no longer dormant, or

(b) if OSCR becomes aware of the identity of a person concerned in the management or control of the relevant body and informs the relevant financial institution of that fact.

Dormant accounts of charities: procedure and interpretation

48

(1) The Scottish Ministers may, by regulations, make provision as to—

(a) the procedure to be followed by OSCR under section 47,

(b) the extent to which OSCR, in transferring an amount under subsection (3) of that section, may retain a sum in respect of its expenses in exercising its functions under that section.

(2) An account is dormant for the purposes of section 47 if no transaction other than—

(a) a payment into the account, or

(b) a transaction effected by the relevant financial institution holding the account,

has been effected in relation to the account within the period of 5 years immediately preceding the dormancy date.

(3) An account is no longer dormant for the purposes of that section if a transaction other than—

(a) a payment into the account,

(b) a transaction effected by the relevant financial institution holding the account, or

is effected after the dormancy date.

(4) The dormancy date is the date on which the institution informs OSCR as mentioned in section 47(1)(a).

Chapter 7 — Scottish charitable incorporated organisations

Nature and constitution

Scottish charitable incorporated organisations

49

(1) A charity may be constituted as a Scottish charitable incorporated organisation (a “SCIO”).

(2) A SCIO is a body corporate having—

(a) a constitution,

(b) a principal office in Scotland,

(3) Its membership may, but need not, consist of or include some or all of its charity trustees.

(4) The members are not liable to contribute to the assets of the SCIO if it is wound up.

Constitution and powers

50

(1) A SCIO's constitution must state its name and its purposes.

(2) A SCIO's constitution must make provision—

(a) about who is eligible for membership, and how a person becomes a member, and

(b) for the appointment of 3 or more persons (“charity trustees”) who are to be charged with the general control of the SCIO's administration, and about any conditions of eligibility for becoming a charity trustee.

(3) A SCIO's constitution must also provide for such other matters, and comply with such requirements, as are specified in regulations made by the Scottish Ministers.

(4) A SCIO must use and apply its property in furtherance of its purposes and in accordance with its constitution.

(5) Subject to anything in its constitution, a SCIO has power to do anything which is calculated to further its purposes or is conducive or incidental to doing so.

(6) For the purposes of managing the affairs of a SCIO, its charity trustees may exercise all the SCIO's powers.

General duty of members of SCIO

51

Subsections (1)(a), (3) and (4) of section 66 apply to the members of a SCIO who are not charity trustees as they apply to its charity trustees.

Name and status

52

(1) The name of a SCIO must appear in legible characters on—

(a) such documents issued by or on behalf of the SCIO,

(b) such documents signed by or on behalf of the SCIO,

as may be specified in regulations made by the Scottish Ministers.

(2) Subsection (3) applies where the name of a SCIO does not include—

(a) “Scottish charitable incorporated organisation”, or

(b) “SCIO” (with or without a full stop after each letter),

whether or not capital letters are used.

(3) Where this subsection applies, the fact that a SCIO is a SCIO must be stated in legible characters in all the documents referred to in subsection (1).

(3A) Regulations under subsection (1) may also require such other information as may be specified in the regulations to be stated in legible characters in the documents referred to in that subsection.

(3B) Such regulations may—

(a) exempt SCIOs, or SCIOs of a particular type, from any of the requirements imposed by virtue of subsection (3A),

(b) provide that any statement required may, in the case of documents which are otherwise wholly or mainly in a language other than English, be made in that other language.

(4) Section 15 does not apply in relation to a SCIO.

(5) For the purposes of this section, a reference to a document—

(a) issued by or on behalf of the SCIO , or

(b) signed by or on behalf of the SCIO ,

includes a reference to a web page on a website operated by or on behalf of the SCIO.

Offences etc.

53

(1) A charity trustee of a SCIO or a person on the SCIO's behalf who—

(a) issues, or authorises the issue of, any document referred to in subsection (1)(a) of section 52, or

(b) signs, or authorises the signature on behalf of the SCIO of, any document referred to in subsection (1)(b) of that section,

which does not comply with subsections (1) and (3) of that section is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) OSCR may direct—

(a) any body which is not a SCIO and which is representing itself as being a SCIO,

(b) any person who is representing that any such body is a SCIO,

to stop doing so by such date as OSCR may direct.

(3) The Court of Session may, on an application by OSCR, interdict—

(a) any body which is not a SCIO from representing itself as a SCIO,

(b) a person who is representing that such a body is a SCIO from doing so.

(4) OSCR may not apply for such an interdict against a body or person unless the body or person has failed to comply with a direction under subsection (2).

Creation of SCIO and entry in Register

Application for creation of SCIO

54

(1) Any 2 or more individuals may apply to OSCR for a SCIO to be constituted and for its entry in the Register.

(2) The application must—

(a) state the name of the SCIO,

(b) state the proposed principal office of the SCIO,

(d) contain such other information, and be accompanied by such other documents, as may be—

(i) required by regulations under section 6(1), or

(ii) otherwise required by OSCR.

(3) OSCR may grant the application only if it considers that the SCIO, if constituted, would meet the charity test.

(4) OSCR must refuse the application if—

(a) it considers that the SCIO's proposed name falls within section 10,

(b) the SCIO's proposed constitution does not comply with one or more of the requirements of section 50 and any regulations made under that section, or

but must not otherwise refuse an application if it considers that the SCIO, if constituted, would meet the charity test.

(5) Sections 4 and 5 do not apply in relation to an application under subsection (1).

Entry in Register

55

(1) If OSCR grants an application under section 54(1) it must enter the SCIO to which the application relates in the Register.

(2) On the entry in the Register being made in accordance with subsection (5), subsections (3) and (4) apply.

(3) The SCIO becomes by virtue of this subsection a body corporate—

(a) whose constitution is that proposed in the application,

(b) whose name is that specified in the constitution, and

(4) All property for the time being vested in those individuals (or any of them) on trust for the charitable purposes of the SCIO (when constituted) vests by virtue of this subsection in the SCIO.

(5) The entry for the SCIO in the Register must (in addition to the matters required by section 3(3)) include—

(a) the date when the entry was made, and

(b) a note stating that the charity is constituted as a SCIO.

(6) OSCR must send a copy of the entry in the Register to the SCIO at its principal office.

(7) If a SCIO ceases to be a charity, it ceases to be a SCIO.

Conversion, amalgamation and transfer

Conversion of charity which is a company or registered friendly society: applications

56

(1) The following may apply to OSCR to be converted into a SCIO, and for the SCIO's entry in the Register—

(a) a charity which is a company,

(b) a charity which is a registered society within the meaning of the Co-operative and Community Benefit Societies Act 2014 ....

(2) But such an application may not be made—

(a) by a company or registered society having a share capital if any of the shares are not fully paid up,

(b) by a company having only a single member.

(3) Such an application is referred to in this section and sections 57 and 58 as an “application for conversion”.

(4) Section 54(2) applies in relation to an application for conversion as it applies to an application for a SCIO to be constituted (but sections 4 and 5 do not apply in relation to an application for conversion).

(5) In addition to the documents referred to in section 54(2), the application for conversion must be accompanied by—

(a) a copy of the resolution of the company or registered society that it be converted into a SCIO, and

(b) a copy of the resolution of the company or registered society adopting the proposed constitution of the SCIO.

(6) The resolution referred to in subsection (5)(a) must be—

(a) a special resolution of the company or registered society, or

(b) a unanimous written resolution signed by or on behalf of all the members of the company or registered society who would be entitled to vote on a special resolution.

(6A) In the case of a company which is registered under the Companies Act 2006 in Scotland , Chapter 3 of Part 3 of that Act (resolutions and agreements affecting a company’s constitution) does not apply to the resolutions mentioned in subsection (5)(a) and (b).

(7) In the case of a registered society, “special resolution” has the meaning given in section 113(2) of the Co-operative and Community Benefit Societies Act 2014 .

Determination of application for conversion

57

(1) Before determining an application for conversion, OSCR must consult—

(a) the appropriate registrar, and

(b) such other persons as it thinks fit,

about whether the application should be granted.

(2) OSCR may grant an application for conversion only if it considers that the charity, if converted into a SCIO as proposed, would continue to meet the charity test.

(3) OSCR must refuse an application for conversion if—

(a) it considers that the SCIO's proposed name falls within section 10,

(b) the SCIO's proposed constitution does not comply with one or more of the requirements of section 50 and any regulations made under that section, or

(4) If OSCR considers that a charity, if converted into a SCIO as proposed in an application for conversion, would continue to meet the charity test, OSCR may refuse the application on grounds other than those set out in subsection (3) only if it is satisfied by any representations received from those whom it consulted under subsection (1) that such a refusal would be appropriate.

Conversion: supplementary

58

(1) If OSCR grants an application for conversion, it must—

(a) enter the SCIO in the Register,

(b) send to the appropriate registrar a copy of each of the resolutions of the converting company or registered society referred to in section 56(5) and a copy of the entry in the Register relating to the SCIO, and

(c) once the SCIO's constitution as a SCIO has taken effect, remove from the Register the entry for the converting company or registered society.

(2) The entry for the SCIO in the Register must, for so long as its constitution as a SCIO has not yet taken effect, include a note stating that fact.

(3) If the appropriate registrar—

(a) registers the documents sent under subsection (1)(b), and

(b) cancels the registration of the company under the Companies Act 2006, or of the society under the Co-operative and Community Benefit Societies Act 2014 (c. 12),

subsections (4) and (5) apply.

(4) The company or registered society is by virtue of this subsection converted into a SCIO, being a body corporate—

(a) whose constitution is that proposed in the application for conversion,

(b) whose name is that specified in the constitution, and

(c) whose first members are the members of the converting company or society immediately before the moment of conversion.

(5) All property, rights and liabilities of the converting company or registered society become by virtue of this subsection the property, rights and liabilities of the SCIO.

(6) The entry for the SCIO in the Register must include—

(a) a note stating that the charity is constituted as a SCIO,

(b) the date on which it became so constituted, and

(7) In section 57 and in this section, the “appropriate registrar” means—

(a) in the case of an application for conversion by a company, the registrar of companies ...,

(b) in the case of an application for conversion by a registered society, the Financial Conduct Authority .

Amalgamation of SCIOs

59

(1) Any 2 or more SCIOs (“the old SCIOs”) may, in accordance with this section, apply to OSCR to be amalgamated, and for a new SCIO (“the new SCIO”) to be constituted and entered in the Register as their successor.

(2) Such an application is referred to in this section and section 60 as an “application for amalgamation”.

(3) Subsections (2) to (4) of section 54 apply in relation to an application for amalgamation as they apply to an application for a SCIO to be constituted, but with references to the SCIO being read as references to the new SCIO (but sections 4 and 5 do not apply in relation to an application for amalgamation).

(4) In addition to the documents and information referred to in section 54(2), the application for amalgamation must be accompanied by—

(a) a copy of a resolution of each of the old SCIOs approving the proposed amalgamation, and

(b) a copy of a resolution of each of the old SCIOs adopting the proposed constitution of the new SCIO.

(5) The resolutions must be passed—

(a) by a two-thirds majority of those voting at a general meeting of the SCIO (including those voting by proxy or by post, if voting that way is permitted), or

(b) unanimously by the SCIO's members, otherwise than at a general meeting.

Amalgamation: supplementary

60

(1) If OSCR grants an application for amalgamation, it must—

(a) enter the new SCIO in the Register, and

(b) remove from the Register the entries for the old SCIOs.

(2) On the new SCIO being entered in the Register it becomes by virtue of this section a body corporate—

(a) whose constitution is that proposed in the application for amalgamation,

(b) whose name is that specified in the constitution, and

(3) On the removal of the old SCIOs from the Register—

(a) all the property, rights and liabilities of each of the old SCIOs become by virtue of this subsection the property, rights and liabilities of the new SCIO, and

(b) each of the old SCIOs is dissolved.

(4) The entry for the new SCIO in the Register must include—

(a) a note stating that it is constituted as a SCIO,

(b) the date on which it became so constituted, and

(5) OSCR must send a copy of the entry in the Register to the new SCIO at its principal office.

Transfer of SCIO’s undertaking

61

(1) A SCIO may resolve that all its property, rights and liabilities should be transferred to another SCIO specified in the resolution.

(2) Where a SCIO has passed such a resolution, it must send to OSCR—

(a) a copy of the resolution, and

(b) a copy of a resolution of the transferee SCIO agreeing to the transfer to it.

(3) A resolution referred to in subsections (1) and (2)(b) must be passed—

(a) by a two-thirds majority of those voting at a general meeting of the SCIO (including those voting by proxy or by post, if voting that way is permitted), or

(b) unanimously by the SCIO's members, otherwise than at a general meeting.

(4) The resolution referred to in subsection (1) does not take effect until confirmed by OSCR.

(5) If OSCR confirms the resolution—

(a) all the property, rights and liabilities of the transferor SCIO become by virtue of this subsection the property, rights and liabilities of the transferee SCIO in accordance with the resolution,

(b) the transferor SCIO is dissolved, and

General

Third parties

62

(1) A person dealing with a SCIO in good faith and for value is not concerned to inquire whether—

(a) anything in the SCIO's constitution prevents it acting in the way that it is, or

(b) any constitutional limitations on the powers of the SCIO's charity trustees prevent them from binding the SCIO or authorising others to do so.

(2) Nothing in subsection (1) prevents a person from bringing proceedings for interdict in respect of the doing of an act which—

(a) the SCIO, because of anything in its constitution, does not have power to do, or

(b) the SCIO's charity trustees, because of any constitutional limitations on their powers, do not have power to do.

(3) But no such proceedings may be brought in respect of an act to be done in fulfilment of a legal obligation arising from a previous act of the SCIO.

(4) Subsection (3) does not prevent OSCR from exercising any of its powers.

(5) Nothing in subsection (1)(b) affects any liability incurred by the SCIO's charity trustees (or any of them) for doing anything which, because of any constitutional limitations on their powers, the trustees (or that trustee) do not have power to do.

(6) Nothing in subsection (1) absolves the SCIO's charity trustees from their duty to act within the SCIO's constitution and in accordance with any constitutional limitations on their powers.

(7) In this section “constitutional limitations” on the powers of a SCIO's charity trustees are limitations on their powers under its constitution, including limitations deriving from a resolution of the SCIO in general meeting, or from an agreement between the SCIO's members.

Amendment of constitution

63

(1) A SCIO may by resolution of its members amend its constitution (and a single resolution may provide for more than one amendment).

(2) Such a resolution must be passed—

(a) by a two-thirds majority of those voting at a general meeting of the SCIO (including those voting by proxy or by post, if voting that way is permitted), or

(b) unanimously by the SCIO's members, otherwise than at a general meeting.

(3) The date of passing of such a resolution is—

(a) the date of the general meeting at which it was passed, or

(b) if it was passed otherwise than at a general meeting, the date on which the last member agreed to it.

Regulations relating to SCIOs

64

(1) The Scottish Ministers may by regulations make further provision in relation to SCIOs including, in particular, provision about—

(a) applications for constitution as, or conversion into, a SCIO, the determination of applications, entry in the Register and the effect of such entry,

(b) the administration of a SCIO,

(d) the winding up, insolvency or dissolution of a SCIO,

(e) the maintenance of registers of information about SCIOs (for example, registers of members, of charity trustees or of charges over the SCIO's assets),

(f) such other matters in connection with the provision made by this Chapter as they think fit.

(2) Regulations under subsection (1) may add to, replace or omit any part of the text of an Act (including this Act).

Chapter 8 — Religious charities

Designated religious charities

65

(1) OSCR may designate as a designated religious charity a charity which appears to it to have—

(a) the advancement of religion as its principal purpose,

(b) the regular holding of public worship as its principal activity,

(d) a membership of at least 3,000 persons who are—

(i) resident in Scotland, and

(ii) at least 16 years of age, and

(e) an internal organisation such that—

(i) one or more authorities in Scotland exercise supervisory and disciplinary functions in respect of the component elements of the charity, and

(ii) those elements are subject to requirements as to keeping accounting records and audit of accounts which appear to OSCR to correspond to those required by section 44.

(2) OSCR may determine that subsection (1)(c) need not be satisfied in the case of a charity—

(a) created by the amalgamation of 2 or more charities each of which, immediately before the amalgamation—

(i) was a designated religious charity, or

(ii) was, in OSCR's opinion, eligible for designation as such, or

(b) constituted by persons who have removed themselves from membership of a charity which, immediately before the removal—

(i) was a designated religious charity, or

(ii) was, in OSCR's opinion, eligible for designation as such.

(3) The provisions set out in subsection (4) do not apply to—

(a) a designated religious charity,

(b) any component element of a designated religious charity which is itself a charity (whether or not having as its principal purpose the advancement of religion).

(4) Those provisions are—

subsections (1) and (6) of section 16 (in so far as those subsections relate to any action set out in subsection (2)(b) to (d) of that section),

section 28(3),

section 30B,

section 31(4) and (6),

section 34(5)(c) to (e),

section 69.

(5) OSCR may, by notice served on a designated religious charity, withdraw the designation of the charity as such where—

(a) it appears to OSCR that one or more of paragraphs (a) to (e) of subsection (1) is no longer satisfied in relation to the charity, or

(b) in consequence of an investigation of any component element of the charity under section 28, OSCR has given a direction under section 31(5) in relation to the component element and considers that it is no longer appropriate for the charity to be a designated religious charity.

Chapter 9 — Charity trustees and senior managers

General duties

Charity trustees: general duties

66

(1) A charity trustee must, in exercising functions in that capacity, act in the interests of the charity and must, in particular—

(a) seek, in good faith, to ensure that the charity acts in a manner which is consistent with its purposes,

(b) act with the care and diligence that it is reasonable to expect of a person who is managing the affairs of another person, and

(c) in circumstances capable of giving rise to a conflict of interest between the charity and any person responsible for the appointment of the charity trustee—

(i) put the interests of the charity before those of the other person, or

(ii) where any other duty prevents the charity trustee from doing so, disclose the conflicting interest to the charity and refrain from participating in any deliberation or decision of the other charity trustees with respect to the matter in question.

(2) The charity trustees of a charity must ensure that the charity complies with any direction, requirement, notice or duty imposed on it by virtue of this Act.

(3) Subsections (1) and (2) are without prejudice to any other duty imposed by enactment or otherwise on a charity trustee in relation to the exercise of functions in that capacity.

(4) Any breach of the duty under subsection (1) or (2) is to be treated as being misconduct in the administration of the charity.

(5) All charity trustees must take such steps as are reasonably practicable for the purposes of ensuring—

(a) that any breach of a duty under subsection (1) or (2) is corrected by the trustee concerned and not repeated, and

(b) that any trustee who has been in serious or persistent breach of either or both of those duties is removed as a trustee.

Remuneration

Remuneration for services

67

(1) A charity trustee may not be remunerated for services provided to the charity (including services provided in the capacity as a charity trustee or under a contract of employment) unless subsection (2) entitles the trustee to be so remunerated.

(2) Where a charity trustee of a charity—

(a) provides services to or on behalf of the charity, or

(b) is connected with a person who provides such services,

the person providing the services (the “service provider”) is entitled to be remunerated from the charity's funds for doing so only if the conditions set out in subsection (3) are met.

(3) Those conditions are—

(a) that the maximum amount of the remuneration—

(i) is set out in a written agreement between the service provider and the charity (or, as the case may be, its charity trustees) under which the service provider is to provide the services in question, and

(ii) is reasonable in the circumstances,

(b) that, before entering into the agreement, the charity trustees were satisfied that it would be in the interests of the charity for those services to be provided by the service provider for that maximum amount,

(c) that, immediately after entering into the agreement, less than half of the total number of charity trustees of the charity fall within subsection (4), and

(d) that the charity's constitution does not contain any provision which expressly prohibits the service provider from receiving the remuneration.

(4) A charity trustee falls within this subsection if the trustee is—

(a) party (in the capacity of a service provider) to a written agreement of the type described in subsection (3)(a)(i) under which any obligation is still to be fully discharged,

(b) entitled to receive remuneration from the charity's funds otherwise than by virtue of such an agreement, or

(c) connected with any other person who is party to an agreement or entitled to receive remuneration as mentioned in paragraph (a) or (b).

(5) Nothing in subsections (1) or (2) prevents a charity trustee or other service provider from receiving any remuneration from a charity's funds which that service provider is entitled to receive by virtue of—

(a) any authorising provision of the charity's constitution which was in force on 15 November 2004,

(b) an order made by the Court of Session, or

(6) For the purposes of subsection (5)(a), an “authorising provision” is a provision which refers specifically to the payment of remuneration—

(a) to the service provider concerned,

(b) where that service provider is a charity trustee, to a charity trustee, or

(7) Where a charity trustee or other service provider is remunerated in contravention of this section, the charity may recover the amount of remuneration; and proceedings for its recovery must be taken if OSCR so directs.

Remuneration: supplementary

68

(1) In section 67—

“benefit” means any direct or indirect benefit,

“maximum amount”, in relation to remuneration, means the maximum amount of the remuneration whether specified in or ascertainable under the terms of the agreement in question,

“remuneration” includes any benefit in kind (and “remunerated” is to be construed accordingly),

“services” includes goods that are supplied in connection with the provision of services.

(2) For the purposes of that section, the following persons are “connected” with a charity trustee—

(a) any person—

(i) to whom the trustee is married,

(ii) who is the civil partner of the trustee, or

(iii) with whom the trustee is living as husband and wife or, where the trustee and the other person are of the same sex, in an equivalent relationship,

(b) any child, parent, grandchild, grandparent, brother or sister of the trustee (and any spouse or civil partner of any such person),

(i) the charity trustee,

(ii) any person with whom the charity trustee is connected by virtue of paragraph (a), (b), (d) or (e), or

(iii) two or more persons falling within sub-paragraph (i) or (ii), when taken together,

(d) a body corporate in which—

(i) the charity trustee has a substantial interest,

(ii) any person with whom the charity trustee is connected by virtue of paragraph (a), (b), (c) or (e) has a substantial interest, or

(iii) two or more persons falling within sub-paragraph (i) or (ii), when taken together, have a substantial interest,

(e) a Scottish partnership in which one or more of the partners is—

(i) the charity trustee, or

(ii) a person with whom the charity trustee is, by virtue of paragraph (a) or (b), connected.

(3) For the purposes of subsection (2) a person who is—

(a) another person's stepchild, or

(b) brought up or treated by another person as if the person were a child of the other person,

is to be treated as that other person's child.

(4) Section 105 sets out when a person is to be treated as being in control of an institution or as having a substantial interest in a body corporate.

Disqualification

Disqualification from being charity trustee

69

(1) The persons specified in subsection (2) are disqualified from being charity trustees (but see also subsection (2A)).

(2) Those persons are any person who—

(a) has been convicted of—

(ai) an offence specified in section 69A,

(i) an offence , not specified in section 69A, involving dishonesty,

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i) is an undischarged bankrupt (see section 70(3)),

(ii) subject to a specified bankruptcy-related measure (see section 70(4)),

(c) has been removed, under section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40) or section 34 of this Act, from being concerned in the management or control of any body,

(d) has been removed as a trustee, charity trustee, officer, agent or employee of a charity by a relevant order in England and Wales (see section 70(5)(a)),

(da) has been removed from the office of charity trustee or trustee for a charity by a relevant order in Northern Ireland (see section 70(5)(b)),

(db) is subject to an order made by the Charity Commission for England and Wales under section 181A of the Charities Act 2011 disqualifying the person in relation to all charities,

(e) is subject to a disqualification order or disqualification undertaking under the Company Directors Disqualification Act 1986 (c. 46) or the Company Directors Disqualification (Northern Ireland) Order 2002 (S.I.2002/3150).

(f) has been found to be in contempt of court by a court in England or Wales in civil proceedings for making a false disclosure statement, or making a false statement in a document verified by a statement of truth, or causing (in either case) such a statement to be made,

(g) has been found guilty of disobedience to—

(i) an order or direction of the Charity Commission for England and Wales on an application to the High Court of Justice in England and Wales under section 336(1) of the Charities Act 2011,

(ii) an order of the Charity Commission for Northern Ireland on an application to the High Court of Justice in Northern Ireland under section 174 of the Charities Act (Northern Ireland) 2008,

(h) is a designated person for the purposes of—

(i) regulations 8 to 12 of the ISIL (Da'esh) and Al-Qaida (United Nations Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/466),

(ii) regulations 11 to 15 of the Counter-Terrorism (International Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/573),

(iii) regulations 11 to 15 of the Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/577),

(i) is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003.

(2A) Where—

(a) a person is subject to an order made by the Charity Commission for England and Wales under section 181A of the Charities Act 2011, and

(b) the order disqualifies the person in relation to a particular charity or type of charity,

the person is also disqualified from being a charity trustee in relation to that charity or type of charity.

(3) A person referred to in subsection (2)(a) is not disqualified under subsection (1) by reason of a conviction if the conviction is spent by virtue of the Rehabilitation of Offenders Act 1974 (c. 53).

(3A) A person referred to in subsection (2)(f) is not disqualified under subsection (1) by reason of a finding of contempt which, if it had been a conviction for which the person was dealt with in the same way, would be a spent conviction for the purposes of the Rehabilitation of Offenders Act 1974.

(4) OSCR may, on the application of a person disqualified under subsection (1) or (2A), waive the disqualification either generally or in relation to a particular charity or type of charity.

(5) OSCR must notify a waiver under subsection (4) to the person concerned.

(6) OSCR must not grant a waiver under subsection (4) if to do so would prejudice the operation of the Company Directors Disqualification Act 1986 (c. 46) or the Company Directors Disqualification (Northern Ireland) Order 2002 (S.I.2002/3150).

(7) The Scottish Ministers may by regulations—

(a) modify this section so as to add or remove a person, or a description of a person, to or from the persons for the time being mentioned in or falling within this section as a person who is disqualified from being a charity trustee,

(b) modify the definitions in section 70 as Ministers consider appropriate in consequence of any modification of this section or otherwise.

Disqualification: supplementary

70

(1) A person who acts as a charity trustee while disqualified by virtue of section 69 , or (as the case may be) holds an office or employment with senior management functions in the charity while disqualified by virtue of section 69B, is guilty of an offence and liable—

(a) on summary conviction, to imprisonment for a period not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both,

(b) on conviction on indictment, to imprisonment for a period not exceeding 2 years or a fine or both.

(2) Any acts done—

(a) as a charity trustee by a person disqualified by virtue of section 69 from being a charity trustee, or

(b) by a person holding an office or employment with senior management functions in a charity while disqualified by virtue of section 69B from holding such an office or employment in the charity,

are not invalid by reason only of the disqualification.

(3) In section 69(2)(b)(i), “undischarged bankrupt” means a person—

(a) whose estate has been sequestrated, who has been adjudged bankrupt or who has granted a trust deed for or entered into an arrangement with creditors, and

(b) who has not been discharged under or by virtue of—

(i) section 137, 138 or 140 of the Bankruptcy (Scotland) Act 2016 ,

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) section 279 or 280 of the Insolvency Act 1986 (c. 45), or

(iv) any other enactment or rule of law subsisting at the time of the person's discharge.

(4) For the purpose of section 69(2)(b)(ii), “specified bankruptcy-related measure” means—

(a) a bankruptcy restrictions order, interim order or undertaking under the Bankruptcy (Scotland) Act 2016, the Insolvency Act 1986 or the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405),

(b) a debt relief restrictions order, interim order or undertaking under the Insolvency Act 1986 or the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405),

(5) For the purposes of section 69(2)(d) and (da), a “relevant order” is—

(a) in England and Wales, an order made—

(i) by the Charity Commission for England and Wales under section 79(4) of the Charities Act 2011 or by the Commission or the Charity Commissioners for England and Wales under a relevant earlier enactment, or

(ii) by the High Court of Justice in England and Wales,

on the grounds of any misconduct or mismanagement in the administration of the charity for which the person was responsible, or which the person knew of and failed to take any reasonable step to oppose, or which the person's conduct contributed to or facilitated,

(b) in Northern Ireland, an order made—

(i) by the Charity Commission for Northern Ireland under section 33(2)(i) of the Charities Act (Northern Ireland) 2008, or

(ii) by the High Court of Justice in Northern Ireland,

on the grounds of any misconduct or mismanagement in the administration of the charity for which the person was responsible, or to which the person was privy, or which the person’s conduct contributed to or facilitated.

(6) In subsection (5)(a), a “relevant earlier enactment” means—

(a) section 79(2)(a) of the Charities Act 2011 (as in force before the commencement of sections 4 and 9 of the Charities (Protection and Social Investment) Act 2016),

(b) section 18(2)(i) of the Charities Act 1993 (power to act for protection of charities),

(d) section 20(1)(i) of the 1960 Act (as in force before the commencement of section 8 of the Charities Act 1992).

Chapter 10 — Decisions: notices, reviews and appeals

Preliminary

Decisions

71

This Chapter applies to any decision by OSCR (or by a person to whom OSCR's functions are delegated by virtue of section 38) to—

(a) refuse an application for entry in the Register, including entry as a SCIO under section 55, 58 or 60,

(b) refuse to disapply section 3(3)(aa) or (b) in relation to a charity,

(d) give a direction under section 12(2) , (2A) or (3),

(e) refuse to give a direction under section 12(2) or (2A),

(f) refuse to consent to a charity taking any action set out in section 16(2),

(g) give a direction under section 28(3),

(h) make a requirement under section 29(1),

(i) remove a charity from the Register under section 30(1) or (3),

(ia) give a direction under section 30(1)(a),

(ib) give a direction under section 30A(2),

(ic) remove a charity from the Register under section 30A(4),

(id) give a direction under section 30B(2),

(j) suspend a person under section 31(4),

(k) give a direction under section 31(5) or (8),

(l) give a direction under section 31(6), (7) or (9),

(m) refuse an application made for the purposes of section 39(1),

(ma) refuse an application made for the purposes of section 43A,

(mb) remove a charity from the Register under section 45A(3),

(n) give a direction under section 53(2),

(o) give a direction under section 67(7),

(p) refuse to grant a waiver under section 69(4),

(pa) refuse to grant a waiver under section 69B(3),

(pb) appoint an interim charity trustee under section 70A(1) or (2)(c),

(pc) refuse an application made for the purposes of section 70ZB(3),

(q) refuse to designate a charity as a designated religious charity or designated national collector, or

(r) withdraw the designation of a charity as a designated religious charity or designated national collector.

Notice and effect of decisions

Notice of decisions

72

(1) Any person who makes a decision to which this Chapter applies must, as soon as reasonably practicable after doing so, give notice of it to the person specified in subsection (2) and, where the decision is made by a person to whom OSCR's functions have been delegated by virtue of section 38, OSCR.

(2) That person is—

(a) in the case of a decision referred to in paragraph (a), (g), (id), (j), (k), (l), (n) , (p), (pa) or (pc) of section 71, the charity, body or person in respect of whom the decision was made,

(b) in the case of a decision referred to in paragraph (e) of that section, the charity which requested OSCR to conduct a review under section 12, and

(ba) in the case of a decision referred to in paragraph (h) of section 71, the charity, body or person with regard to which OSCR is making inquiries under section 28,

(bb) in the case of a decision referred to in paragraph (pb) of section 71, the charity trustees of the charity in respect of which the decision was made,

(3) A notice given under this section must—

(a) set out the decision,

(b) give the reasons for the decision, and

(i) the right to request OSCR to review the decision, and

(ii) the period within which such a request must be made.

(4) For the purposes of subsection (2)(ba)—

(a) if OSCR is making inquiries into a body in relation to a period in which the body was a charity, the notice is to be given to the body as required by subsection (2)(ba), but

(b) if the charity or (as the case may be) body to which notice is to be given has ceased to exist, the notice must be given, to the extent that it is reasonably practicable to do so—

(i) in the case of a charity, to each person who was a charity trustee of the charity immediately before it ceased to exist,

(ii) in the case of a body, to each person who appears to the person giving the notice to have been concerned in the management or control of the body immediately before it ceased to exist.

Effect of decisions

73

(1) Unless subsection (2) or (3) provides otherwise, a decision to which this Chapter applies (and any direction, requirement, suspension or other act in pursuance of such a decision) has effect from the day on which the notice required by section 72 is given.

(2) A decision referred to in section 71(d), (i), (ia), (ib), (ic), (id), (mb), (o) , (pb) or (r) (and any direction, requirement, suspension or other act in pursuance of such a decision) is of no effect unless and until the notice required by section 72 is given and—

(a) the period within which OSCR must, on request, review the decision expires without a request being made, or

(b) where OSCR, on a request made within that period, confirms the decision (with or without variations)—

(i) the period within which that decision by OSCR may be appealed under section 76 to the First-tier Tribunal expires without an appeal being made, or

(ii) where such an appeal is made, it is abandoned or finally determined (by the First-tier Tribunal or, as the case may be, the Upper Tribunal ).

(3) A decision referred to in section 71(h) (and any corresponding requirement) is of no effect unless and until any notice required by section 72 is given and—

(a) the period within which OSCR must, on request, review the decision expires without a request being made, or

(b) where such a request is made, the date on which OSCR confirms the decision (with or without variations).

Reviews

Review of decisions

74

(1) OSCR must, within 21 days of being requested to do so by a person given notice under section 72 of a decision to which this Chapter applies—

(a) review the decision,

(b) confirm, vary, reverse or revoke it, and

(1A) Where there is more than one charity trustee to whom notice of a decision referred to in section 71(pb) is given under section 72, a request under subsection (1) may be made by any of them.

(2) A notice under paragraph (c) of subsection (1) must set out OSCR's reasons for its decision under paragraph (b) of that section.

(3) The duty in subsection (1) applies only if the request is made within 21 days of the notice under section 72 being given to the person making the request.

(4) OSCR must publish any further procedures in accordance with which reviews are to be conducted.

Appeals

Scottish Charity Appeals Panel

75

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeals to Scottish Charity Appeals Panel

76

(1) Where OSCR—

(a) confirms a decision under section 74(1), or

(b) reconfirms a decision under section 77(1),

the decision (or, where OSCR varies the decision on confirming or reconfirming it, the decision as varied) may be appealed to the First-tier Tribunal .

(2) A decision referred to in paragraph (g) or (h) of section 71 (whether or not confirmed with variations) may not, despite subsection (1)(a), be appealed to the First-tier Tribunal .

(3) It is for the person whose request or, as the case may be, earlier appeal under this section caused OSCR to confirm or reconfirm the decision to make an appeal under subsection (1).

(4) Such an appeal must be made within 28 days of the person entitled to appeal it being given notice of the confirmation or reconfirmation.

(5) The First-tier Tribunal may—

(a) confirm a decision appealed to it,

(b) quash such a decision and direct OSCR to take such other action, if any, as the First-tier Tribunal thinks fit by such time as may be specified in the direction, or

(c) remit such a decision back to OSCR, together with the First-tier Tribunal’s reasons for doing so, for reconsideration.

Reconsideration of decision remitted to OSCR

77

(1) OSCR must, within 14 days of a decision being remitted to it under section 76(5)(c)—

(a) reconsider the decision,

(b) confirm, vary, reverse or revoke it, and

(c) give notice of its decision under paragraph (b) to the person who appealed its earlier decision to the First-tier Tribunal .

(2) That notice must set out OSCR's reasons for its decision under subsection (1)(b).

Appeals to Court of Session

78

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Any decision of OSCR (or by a person to whom OSCR's functions are delegated by virtue of section 38) to suspend a person by notice under section 31(4) may be appealed by the person suspended to the Court of Session.

(3) The Court of Session may—

(a) confirm the decision appealed to it, or

(b) quash the decision and direct OSCR (or the person to whom OSCR's functions are delegated by virtue of section 38, as the case may be) to take such action, if any, as the Court thinks fit by such time as may be specified in the direction.

Part 2 — Fundraising for benevolent bodies

Preliminary

Interpretation of Part 2

79

(1) In this Part—

“benevolent body” means a body (including a charity) which is established for charitable, benevolent or philanthropic purposes,

“benevolent contributions”, in relation to a representation made by a commercial participator or other person, means—the whole or part of—the consideration given for goods or services sold or supplied by that person,any proceeds (other than such consideration) of a promotional venture undertaken by that person,sums given by that person by way of donation in connection with the sale or supply of such goods or services,

“commercial participator” means a person who—carries on for profit a business other than a fundraising business, butin the course of that business, engages in a promotional venture in the course of which it is represented that benevolent contributions are to be—given to or applied for the benefit of one or more particular benevolent bodies, orapplied for charitable, benevolent or philanthropic purposes,

“fundraising business” means a business carried on for profit and wholly or primarily engaged in soliciting or otherwise procuring money or promises of money for one or more particular benevolent bodies or for charitable, benevolent or philanthropic purposes,

“goods” includes all corporeal moveables except money,

“professional fundraiser” means—a person (other than a benevolent body or a company connected with it) who carries on a fundraising business,any other person who for reward solicits money or other property for the benefit of a benevolent body or for charitable, benevolent or philanthropic purposes otherwise than in the course of a fundraising venture undertaken by a person falling within paragraph (a),

“promises of money” includes standing orders, direct debits and similar instructions and authorisations for the payment of money,

“promotional venture” means an advertising or sales campaign or any other venture undertaken for promotional purposes,

“radio or television programme” includes any item included in a programme service within the meaning of the Broadcasting Act 1990 (c. 42),

“services” includes facilities, and in particular—access to any premises or event,membership of any organisation,a ticket or other entitlement to participate in a lottery or game of chance,the provision of advertising space, andthe provision of any financial facilities,and references to the supply of services are to be construed accordingly.

(2) In subsection (1), the definition of “commercial participator”, in relation to a benevolent body, does not include a company connected with the body.

(3) The following persons are excluded from paragraph (b) of the definition of “professional fundraiser” in subsection (1)—

(a) a benevolent body or a company connected with it,

(b) a person concerned in the management or control, or an employee, of any such body or company,

(c) a person who in the course of a radio or television programme during which a fundraising venture is undertaken by a benevolent body, or by a company connected with it, makes any solicitation at the instance of the body or company,

(d) a commercial participator,

(e) a person who receives no more than—

(i) such sum as may be specified by regulations under section 83 by way of remuneration in connection with soliciting money or other property for the benefit of the benevolent body, or

(ii) such sum as may be so specified by way of remuneration in connection with any fundraising venture in the course of which the person solicits money or other property for the benefit of that body.

(4) For the purposes of this Part a company is connected with a benevolent body if—

(a) the body, or

(b) the body and one or more other benevolent bodies, when taken together,

is or are entitled (whether directly or through one or more nominees) to exercise, or control the exercise of, the whole of the voting power at a general meeting of the company.

Representation and solicitation

80

(1) In this Part, references to representing and soliciting are to representing and soliciting in any manner, whether expressly or impliedly and however the representation or solicitation is communicated, and include representations and solicitations made—

(a) orally (whether or not in the presence of the person being spoken to),

(b) in writing (whether or not by means of electronic communication), or

(2) In construing references to soliciting or otherwise procuring money or promises of money, it is immaterial whether any consideration by way of goods or services is, or is to be, given in return for the money or promises of money.

(3) Where—

(a) a solicitation of money or a promise of money for the benefit of a benevolent body is made in accordance with arrangements between a person and the body, and

(b) under those arrangements the person will be responsible for receiving on behalf of the body money or a promise of money given in response to the solicitation,

then (if the person would not be so regarded apart from this subsection) that person is to be regarded for the purposes of this Part as soliciting money or promises of money for the benefit of the body.

(4) Where a fundraising venture is undertaken by a professional fundraiser in the course of a radio or television programme, a solicitation which is made by a person in the course of the programme at the instance of the fundraiser is to be treated for the purposes of this Part as made by the fundraiser and not by the person (whether or not the solicitation is made by the person for any reward).

Control of fundraising

Prohibition on professional fundraising without formal agreement

81

(1) It is unlawful—

(a) for a professional fundraiser to solicit money or promises of money for the benefit of a benevolent body, or

(b) for a commercial participator to represent that benevolent contributions are to be given to, or applied for the benefit of, a benevolent body,

except in accordance with an agreement between the professional fundraiser or commercial participator and the body which satisfies the prescribed requirements.

(2) Where on the application of a benevolent body (whether or not a charity), or of OSCR in relation to a benevolent body which is a charity, the sheriff is satisfied—

(a) that a person has contravened or is contravening subsection (1) in relation to the body, and

(b) that the contravention is likely to continue or be repeated,

the sheriff may grant an interdict.

(3) Compliance with subsection (1) is enforceable only under subsection (2).

(4) Subsections (5) and (6) apply where a benevolent body makes an agreement with a professional fundraiser or a commercial participator authorising—

(a) the professional fundraiser to solicit money or promises of money, or

(b) the commercial participator to represent that benevolent contributions are to be given to or applied,

for the benefit of the body.

(5) If the agreement does not satisfy the prescribed requirements, it is not enforceable against the benevolent body except to such extent (if any) as may be provided by an order of the sheriff.

(6) The professional fundraiser or commercial participator is not entitled to receive remuneration or expenses in respect of anything done in pursuance of the agreement unless the agreement provides for such remuneration or expenses and—

(a) the agreement satisfies the prescribed requirements, or

(b) any such provision has effect by virtue of an order under subsection (5).

(7) In this section “the prescribed requirements” means such requirements as are prescribed by regulations made under section 83.

Prevention of unauthorised fundraising

82

(1) Where on the application of a benevolent body, the sheriff is satisfied—

(a) that the body has complied with subsection (3),

(b) that any person is or has been—

(i) soliciting money or promises of money for the benefit of the body, or

(ii) representing that benevolent contributions are to be given to or applied for the benefit of the body,

(d) as to one or more of the matters specified in subsection (2),

the sheriff may grant an interdict.

(2) Those matters are—

(a) that the person in question is using methods of fundraising to which the body objects,

(b) that that person is not a fit and proper person to raise funds for the body,

(c) where the conduct complained of is the making of such representations as are mentioned in subsection (1)(b)(ii), that the body does not wish to be associated with the particular promotional or other fundraising venture in which that person is engaged.

(3) Not less than 28 days before making an application under subsection (1) the benevolent body must serve on the person in question a notice—

(a) requesting the person immediately to cease—

(i) soliciting money or promises of money for the benefit of the body, or

(ii) representing that benevolent contributions are to be given to or applied for the benefit of the body,

as the case may be, and

(b) stating that, if the person does not comply with the notice, the body will apply for an interdict under this section.

(4) Where a person to whom a benevolent body gives such a notice—

(a) complies with the notice, but

(b) subsequently begins to carry on activities which are the same, or substantially the same, as those in respect of which the notice was given,

the body need not, for the purposes of an application under subsection (1) made by it, serve a further notice on the person in respect of any such activities carried on within 12 months of giving the notice.

(5) No application may be made under subsection (1) by a benevolent body in respect of anything done by a professional fundraiser or commercial participator in relation to the body.

Regulations about fundraising

83

(1) The Scottish Ministers may, after consulting such persons as they think fit, make regulations—

(a) about the solicitation by professional fundraisers of money or promises of money for the benefit of benevolent bodies or for charitable, benevolent or philanthropic purposes,

(b) about representations made by commercial participators in relation to benevolent contributions,

(2) Such regulations may, in particular, make provision—

(a) specifying sums for the purposes of section 79(3)(e),

(b) about the form and content of—

(i) agreements for the purposes of section 81,

(ii) notices under section 82(3),

(c) about the information and identification to be provided by professional fundraisers or commercial participators in soliciting money or promises of money or making representations in relation to benevolent contributions,

(d) about the information and identification to be provided by benevolent fundraisers in carrying on benevolent fundraising,

(e) about circumstances in which payments or agreements made in response to—

(i) solicitations or representations of the type described in paragraph (c), or

(ii) benevolent fundraising,

may be refunded or, as the case may be, cancelled,

(f) requiring professional fundraisers or commercial participators to make available to benevolent bodies with whom they have agreements for the purposes of section 81 books, documents or other records (however kept) which relate to the bodies,

(g) about the manner in which money or promises of money acquired by professional fundraisers or commercial participators for the benefit of, or otherwise falling to be given to or applied by them for the benefit of, benevolent bodies is or are to be transmitted to the bodies,

(h) requiring benevolent fundraisers, in carrying on benevolent fundraising, to take all reasonable steps to ensure that it is carried on in such a way that it does not—

(i) unreasonably intrude on the privacy of those from whom funds are being solicited or procured,

(ii) involve the making of unreasonably persistent approaches to persons to donate funds,

(iii) result in undue pressure being placed on persons to donate funds,

(iv) involve the making of any false or misleading representation about any of the matters mentioned in subsection (3).

(3) Those matters are—

(a) the extent or urgency of any need for funds on the part of any benevolent body or company connected with such a body,

(b) any use to which funds donated in response to the fundraising are to be put by such a body or company, and

(4) In subsection (2)(g) the reference to money or promises of money includes a reference to money or promises of money which, in the case of a professional fundraiser or commercial participator—

(a) has or have been acquired by the fundraiser or commercial participator otherwise than in accordance with an agreement with a benevolent body, but

(b) by reason of any solicitation or representation in consequence of which it has or they have been acquired, is or are held by the fundraiser or commercial participator on trust for such a body.

(5) Regulations under this section may provide that a person who, without reasonable excuse, fails to comply with a specified requirement of the regulations is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(6) In this section—

“benevolent fundraising” means soliciting or otherwise procuring money or promises of money for—the benefit of benevolent bodies or companies connected with them, orcharitable, benevolent or philanthropic purposes,

“benevolent fundraisers” are—benevolent bodies and companies connected with them,persons concerned in the management or control of such bodies or companies,employees or agents of—such bodies or companies,persons concerned in the management or control of such bodies or companies, andvolunteers acting for or on behalf of such bodies or companies.

Public benevolent collections

Meaning of “public benevolent collection”

84

(1) This section applies for the interpretation of sections 85 to 92.

(2) “Public benevolent collection” means a collection from the public of money or promises of money (whether or not given by them for a consideration by way of goods or services) for the benefit of benevolent bodies or for charitable, benevolent or philanthropic purposes taken—

(a) in a public place, or

(b) by means of visits to two or more houses or business premises.

(3) “Public place”, in relation to a public benevolent collection, means—

(a) any road (within the meaning of the Roads (Scotland) Act 1984 (c. 54)), and

(b) any other place to which, at any time when the collection is taken, members of the public have access as of right or by virtue of express or implied permission and which—

(i) is not within a building, or

(ii) if within a building, is a public area within any station, airport or shopping precinct or is any other similar public area.

(4) But subsection (3)(b) does not apply to any place to which members of the public have access—

(a) only on payment or by ticket,

(b) only by virtue of permission given for the purpose of the collection in question.

(5) In relation to a public benevolent collection—

“business premises” means any premises used for business or other commercial purposes,

“house” includes any part of a building constituting a separate dwelling.

Regulation of public benevolent collections

85

(1) Where a public benevolent collection is held in the area of a local authority without the consent of the authority under section 86, the organiser of the collection is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(2) Subsection (1) does not apply to a collection—

(a) by a designated national collector,

(b) which takes place in the course of a public meeting,

(i) takes place on land to which members of the public have access only by virtue of the express or implied permission of the occupier of the land or by virtue of any enactment, and

(ii) is organised by the occupier of the land, or

(d) which takes place by means of an unattended receptacle in a public place.

(3) In subsection (2), “occupier” means, in relation to unoccupied land, the person entitled to occupy it.

Local authority consents

86

(1) An application for the consent of a local authority to the holding of a public benevolent collection must be made to the authority, in such form as the authority may determine, by the organiser of the collection—

(a) no earlier than 18 months, and

(b) no later than 2 months (or such shorter period as the organiser and the authority may agree),

before the proposed date of the collection.

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